*The HONORABLE DONALD D. ALSOP, United States District Judge

for the District of Minnesota, sitting by designation.

 The Honorable Lawrence O. Davis, United States Magistrate 1

Judge fo the Eastern District of Missouri, to whom the case was

referred for final disposition by consent of the parties pursuant

to 28 U.S.C. § 636(c)(1988). 

___________

No. 95-2605

___________

Leonard Rifkin, James F. *

Hutson, on their own behalf *

and on behalf of all others *

similarly situated; Gerald *

Blair, *

*

Appellants, *

* Appeal from the United States

v. * District Court for the

* Eastern District of Missouri.

McDonnell Douglas Corporation, *

a Corporation, *

*

Appellee. *

___________

 Submitted: January 8, 1996

 Filed: March 6, 1996

___________

Before BEAM, MORRIS SHEPPARD ARNOLD, Circuit Judges, and ALSOP, District *

Judge.

___________

ALSOP, District Judge.

Appellants Leonard Rifkin, et al., bring this action claiming

McDonnell Douglas Corporation violated their rights under the

Worker Adjustment and Retraining Notification (“WARN”) Act by

failing to provide timely notice to workers who suffered an

employment loss. 29 U.S.C. §§ 2101-09 (1992). They appeal the

District Court’s ruling that there was no “mass layoff” as defined 1
 There are actually two locations in St. Charles County and 2

numerous locations in St. Louis County. The parties do not

dispute whether the locations within each separate county may be

grouped together. The only dispute is whether those locations in

St. Louis County may be grouped together with the two St. Charles

County locations. Accordingly, we simply refer to St. Louis

County and St. Charles County as two different locations as

opposed to multiple locations.

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in the WARN Act because the requisite 500 employees did not suffer

an employment loss and, because there was no “mass layoff”, the

WARN Act does not apply. We affirm.

I.

In early 1992, Leonard Rifkin and James F. Hutson were

employees of McDonnell Douglas Corporation in the metropolitan St.

Louis area. Between October 16, 1992 and January 14, 1993, 609

employees, including appellants, were laid off by McDonnell

Douglas. None of these employees received the 60 days’ written

notice required by the WARN Act. 

These 609 employees worked at different locations in the St.

Louis metropolitan area. Five hundred sixty-two (562) employees

worked at the St. Louis County location whereas 47 employees worked

at the St. Charles County location. These two locations are 11 1⁄2 2

miles apart. Fifty-two (52) employees were “part-time” employees

as defined by the WARN Act (50 at the St. Louis County location and

2 at the St. Charles County location). Both parties agree the

part-time employees do not count towards the requisite 500

employees. Thirty-five (35) employees who had been laid off during

this period were rehired within six months (32 at St. Louis and 3

at St. Charles). Thirty-one (31) employees elected early

retirement in lieu of being laid off (all at St. Louis).
 A “mass layoff” is also defined as a layoff of at least 33 3

percent of the employees, at a minimum of 50 employees (excluding

part-time employees). 29 U.S.C. § 2101(a)(3). Appellant does not

argue this, however.

 Appellants also challenge the District Court’s denial of class 4

certification in the underlying matter. This issue will not be

addressed because, as a result of the court’s present holding,

the issue is moot.

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Appellants Rifkin and Hutson filed suit in the Eastern

District of Missouri on January 21, 1993 claiming McDonnell Douglas

violated the WARN Act. On August 11, 1993, appellants filed their

first amended complaint adding Gerald Blair as a plaintiff and

requesting they be allowed to bring the suit as a class action on

behalf of all McDonnell Douglas employees who were permanently laid

off between October 16, 1992 and January 14, 1993. A motion for

class certification filed October 13, 1993 was denied by the

Honorable Charles Shaw on December 22, 1994. 

McDonnell Douglas filed its Motion for Summary Judgment on

January 7, 1995, arguing the WARN Act does not apply because there

was no “mass layoff.” Under the WARN Act, at least 500 employees

must suffer an “employment loss” at a single site in order for

there to be a “mass layoff.” First, McDonnell Douglas argued the 3

St. Louis County and St. Charles County sites were not a “single

site” as defined by the WARN Act and thus the number of laid off

employees from these separate locations could not be aggregated for

purposes of meeting the 500 employee requirement. Second,

McDonnell Douglas argued that employees who were laid off and later

rehired within six months did not suffer an employment loss as

defined by the WARN Act because their layoffs were not in fact

permanent. Finally, McDonnell Douglas argued the employees who

opted for early retirement in lieu of layoff did not suffer an

employment loss as defined by the WARN Act. The District Court

4
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granted McDonnell Douglas’s Motion for Summary Judgment. According

to the court below, the St. Louis and St. Charles sites were not a
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“single site”, and those employees laid off and rehired within six

months and those employees who opted for early retirement in lieu

of layoff did not suffer an employment loss. Accordingly, the 500

employee requisite number was not met. 

Mr. Rifkin, et al., now appeal the District Court’s decision

in all respects. 

II.

Summary judgment is appropriate when no genuine issue of

material fact remains and the movant is entitled to judgment as a

matter of law. Fed.R.Civ.P. 56(c). We review a grant of summary

judgment de novo, applying the same standard as the trial court.

We view the record in the light most favorable to the non-moving

party, with all reasonable inferences drawn in that party’s favor.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255. But if the

record as a whole could not lead a rational trier of fact to find

for the non-moving party, there is no genuine issue for trial.

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

587 (1987). We also review a district court’s interpretation of a

statute de novo. Crane v. Sullivan, 993 F.2d 1335, 1336 (8th Cir.

1993). 

The WARN Act requires that an employer give 60 days’ notice to

all affected workers before ordering a mass layoff. 29 U.S.C. §

2102(a)(3). A mass layoff is defined as a reduction in force

which: 

(B) results in an employment loss at the single site of 

employment during any 30-day period for- 

(i)(I)at least 33 percent of the employees (excluding any

part-time employees); and 

 (II)at least 50 employees (excluding any part-time 

 employees); or

(ii)at least 500 employees (excluding any part time 

employees); . . . 29 U.S.C. § 2101(a)(3).
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Appellant argues the WARN Act applies because, under §
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2102(a)(3)(B)(ii), at least 500 employees suffered an employment

loss at the single site composed of the metropolitan St. Louis

area, including the St. Charles County sites. The issues to be

determined on appeal all concern the aggregation of the number of

employees who suffered an employment loss: (A) whether

geographically separate sites, those located in St. Louis County

and those in St. Charles County, compose a “single site”, thus

allowing the aggregation of the number of laid off employees at

both locations; (B) whether employees at these locations who were

laid off and then rehired within six months suffered an employment

loss as defined by § 2101(a)(6); (C) whether employees at the St.

Louis sites who chose early retirement in lieu of layoff suffered

an employment loss as defined by § 2101(a)(6).

A. Single Site

There is no statutory definition of “single site” of

employment in the WARN Act but Deparment of Labor (“DOL”)

regulations and comments provide significant guidance in

interpreting these provisions. The DOL Comments to the WARN Act

state: “workers who suffer an employment loss at another single

site of employment are not counted in determining whether plant

closing or mass layoff coverage thresholds are met.” DOL Comments,

54 Fed. Reg. 16,042, 16,047 (1989). The DOL defines “single site

of employment” spatially by stating a “single site of employment

can refer to either a single location or a group of contiguous

locations.” 20 C.F.R. § 639.3(i)(1)(1995). As a general rule,

geographically related facilities are single sites of employment

whereas geographically separate facilities are separate sites. DOL

Comments, 54 Fed. Reg. 16,042, 16,049-50 (1989). 

Sites need not be contiguous in order to be considered a
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“single site”, but in order for non-contiguous sites to be deemed

a “single site”, there must be some connection between the sites
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beyond that of common ownership. In the situation of noncontiguous sites, the DOL states:

(4) Non-contiguous sites in the same geographic area

which do not share the same staff or operational purpose

should not be considered a single site. For example,

assembly plants which are located on opposite sides of a

town and which are managed by a single employer are

separate sites if they employ different workers. 20

C.F.R. § 639.3(i)(4)(1995).

A DOL discussion paper further clarifies that “geographically

separate buildings (i.e. several blocks or miles apart) would not

appear to constitute a single site unless they were part of a

single operation. An example of such an exception might be two

warehouses several blocks apart sharing the same staff and

equipment.” 9A Ind.Empl.Rights Man. (BNA) 595:954 (1988);

International Union, United Mine Workers v. Jim Walter Resources,

Inc., 6 F.3d 722 (11th Cir. 1993). 

The WARN Act’s legislative history supports this definition.

The House/Senate conferees removed “all references to ‘place of

employment’ and replace[d] them with ‘single site of employment.’

This change is intended to clarify that geographically separate

operations are not to be combined when determining whether the

employment threshold for triggering the notice requirement is met.”

H.R. Conf. Rep. No. 576, 100th Cong., 2d Sess. 1045 (1988),

reprinted in 1988 U.S.C.C.A.N. 2078, 2079.

Other circuits interpret the regulations and legislative

history similarly, holding that sharing of staff and equipment, and

sharing the same operational purpose are appropriate criteria for

determining whether two non-contiguous sites comprise a “single

site” under the WARN Act. See Williams v. Phillips Petroleum

Company, 23 F.3d 930 (5th Cir. 1994); International Union, United

Mine Workers v. Jim Walter Resources, Inc., 6 F.3d 722 (11th Cir.
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1993). 
-11-

Appellant argues: (1) he has created a genuine issue of

material fact as to whether the St. Louis and St. Charles sites

share the same staff, equipment, and operational purpose; and, in

the alternative, (2) the “truly unusual organizational situation”

exception set forth at 20 C.F.R. § 639.3(a)(i)(8) applies in the

case at hand. 

(1) Operational staff and purpose

Appellants argue their submissions create a genuine issue of

material fact as to whether the St. Louis and St. Charles locations

are a “single site”. The evidence alleges that McDonnell Douglas

operations are, in general, quite integrated. The evidence further

alleges occasional transfer of employees and office equipment

between the different sites, and central maintenance of personnel

files. This evidence, even if true, does not establish the

necessary connection between locations to constitute a “single

site.” There is no evidence that employees and equipment are

regularly shared as opposed to occasionally transferred. Jim

Walters, 6 F.3d at 726. Further, appellants alleged some

similarities and connections amongst the products produced at the

different sites. However, similarity of “operational purpose”

means more than “produce the same product.” It suggests, at least,

the sharing of some management and personnel. Jim Walters, 6 F.3d

at 727. Appellants’ evidence does not establish a genuine issue of

material fact regarding any of these “single site” criteria. 

(2) Truly Unusual Organizational Situation

Appellants also argue McDonnell Douglas’s St. Louis and St.

Charles locations fit within the “truly unusual organizational

situation” exception to the “single site” rule. 20 C.F.R. §
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639.3(a)(i)(8)(1995). Under this exception, two or more apparently

separate sites may be deemed a “single site” if other criteria set
-13-

out by the DOL do not reasonably apply. The case which best

defines this exception is Carpenters Dist. Council v. Dillard Dep’t

Stores, 15 F.3d 1275, 1290 (5th Cir. 1994), cert. denied, 115 S.Ct.

933 (1995). In Carpenter’s Dist. Council, the court held that two

separate locations were a “single site” when employees, housed

together, were split off into a different building due to space

considerations yet continued to perform the same functions. In the

situation at hand, there is nothing unusual about the organization

of the St. Louis and St. Charles County sites. Any connection

between the two sites is nothing more than that present in most

large corporate organizations.

The St. Louis and St. Charles sites are not a “single site” as

defined by DOL regulations and they do not come under the “truly

unusual organizational situation” exception. Accordingly, the

number of employees who suffered an employment loss at these two

separate locations may not be aggregated to reach the 500 employee

threshold.

The Court’s holding that the St. Louis and St. Charles sites

are not a “single site” has the following effect. Of the 609

employees who allegedly suffered an employment loss, 47 worked at

the St. Charles location, leaving the total potential number of

employees suffering an employment loss at 562. Forty-nine (49) of

the St. Louis employees were part-time employees, reducing the

total to 513. Thirty-two (32) St. Louis employees were rehired

within 6 months and 28 retired before layoff. If those employees

who were rehired within six months did not suffer an employment

loss, then the total potential number of employees suffering an

employment loss is 481. In the alternative, if those employees who

opted for early retirement in lieu of a layoff did not suffer an

employment loss, the total potential number of employees suffering
-14-

an employment loss is 485. Accordingly, if appellants’ arguments

on either issue fail, this Court must affirm the lower court
-15-

because the 500 employee requirement is not met. 

B. Rehired employees

The layoff notice given to the affected employees stated they

were being laid off as part of a reduction in force and that the

layoff was “expected to be permanent.” Thirty-two (32) of these

employees were rehired within six months. The WARN Act defines

“employment loss” as . . . “(A) an employment termination, other

than a discharge for cause, voluntary departure, or retirement, (B)

a layoff exceeding 6 months, or (C) a reduction in hours of work of

more than 50 percent during each month of any 6-month period.” 29

U.S.C. § 2101(a)(6). Appellants argue that, because the layoffs

were “expected to be permanent”, these were employment terminations

and the situation falls under § 2101(a)(6)(A). Thus, appellants

argue, the subsequent rehiring was irrelevant. 

A common sense reading of the statute indicates it is the

actuality of a termination which controls and not the expectations

of the employees. An employee cannot be defined as “terminated” if

he or she is, in fact, rehired in the same position. Further, the

fact that the layoff was merely “expected to be permanent” as

opposed to a termination left open the possibility of a rehire and

thus weighs against classifying this situation as an employment

termination. 

Although the DOL has never addressed this particular

situation, its comments indicate it is actuality and not

expectations or terminology which control whether or not an

employment loss has occurred. 

A commentator questioned whether employees laid off for an

indefinite period (i.e. where the employer expects to recall

them but does not know whether their recall will occur before
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or after 6 months) are automatically to be considered as

experiencing an employment loss at the time of the layoff. In

this situation, the layoff is not automatically deemed an
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employment loss. If the layoff lasted for more than six

months, the workers would experience an employment loss,

would be counted toward the trigger level for the plant

closing or mass layoff of which their individual layoffs

were a part, and would have been entitled to notice if

the layoff or closing met coverage thresholds. DOL

Comments, 54 Fed. Reg. 16,042, 16,049 (1989). 

Finally, this conclusion is consonant with the purpose of the

WARN Act, that is, “to ensure adequate opportunities (by way of

notice of imminent employment loss) for retraining and/or

reemployment.” Moore v. Warehouse Club, Inc., 992 F.2d 27, 30 (3d

Cir. 1993). It is designed to give “workers and their families

some transition time to adjust to the prospective loss of

employment, to seek and obtain alternative jobs and, if necessary,

to enter skill training or retraining that will allow these workers

to successfully compete in the job market.” 20 C.F.R. § 639.1

(1995); Martin v. AMR Services Corp., 877 F.Supp. 108, 113

(E.D.N.Y. 1995), aff’d, Gonzalez v. AMR Services, 68 F.3d 1529 (2d

Cir. 1995). Employees in the situation at hand who were in fact

rehired do not fall within the purpose of the WARN Act because

there is no need for retraining or alternative jobs. Accordingly,

the number of employees rehired within six months do not count

towards the requisite 500 employees who suffered an employment

loss. Oil, Chemical, and Atomic Workers, Int’l Union, Local 7-515,

AFL-CIO v. American Home Prods. Corp., 790 F.Supp. 1441 (N.D. Ind.

1992)(holding that employees whose positions were terminated but

were later rehired within six months did not suffer an employment

loss.); cf Martin v. AMR Servs. Corp., 877 F.Supp. 108 (E.D.N.Y.

1995), aff’d, Gonzalez v. AMR Services, 68 F.3d 1529 (2d Cir.

1995); Kildea v. Electro Wire Products , Inc., 775 F.Supp. 1014

(E.D.Mich. 1991).

C. Retirees
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Finally, appellants argue that those employees who opted for
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early retirement in lieu of layoff suffered an “employment loss”

under the WARN Act. Once again, employment loss is defined in the

WARN Act as “(A) an employment termination, other than a discharge

for cause, voluntary departure, or retirement.” 29 U.S.C. §

2101(a)(6)(A). The plain wording of the statute indicates a

retirement is not an “employment loss.” DOL Comments state:

If . . . at the time the decision to give notice has to

be made, the employer is not certain that its early

retirement incentives will be accepted or how many

workers will accept early retirement, the employer is

best advised to give notice. If the employer ‘gambles’

that a sufficient number of employees will accept the

offer and ‘loses’, the employer’s cost will be 60 day’s

pay and benefits . . . .” DOL Comments, 54 Fed. Reg.

16,042, 16,043 (1989). 

By implication, the DOL’s position is that early retirement in lieu

of layoff is not an “employment loss” under the WARN Act. This is

consonant with the purpose of the WARN Act, providing time for

retraining and reemployment, because those who choose early

retirement are not in need of such warning. Accordingly, we agree

with the lower court that those employees who opted for early

retirement in lieu of layoff did not suffer an “employment loss.”

III. 

In summary, the work sites located in St. Louis County cannot

be joined with those located in St. Charles County to compose a

single site and thus the number of workers at the separate sites

may not be aggregated for purposes of meeting the 500 employee

requisite for a “mass layoff” under the WARN Act. Further, those

employees who were laid off and later recalled within 6 months and

those employees who opted for early retirement in lieu of a layoff

did not suffer an “employment loss” as defined by the WARN Act and,

accordingly, do not count for purposes of meeting the 500 employee

requisite for a "mass layoff." Finally, the district court's
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denial of class certification is moot as appellant’s claims fail on

the
-21-

merits. Accordingly, for the reasons discussed above, we affirm

the District Court’s order granting summary judgment for McDonnell

Douglas Corporation. 

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.